Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also appearing, William J. Hadden, Esquire, appearing on behalf of officer Purdy; Lucienne A. Coleman, Deputy District Attorney.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

(Pages 44409 through 44438, volume 218A, transcribed and sealed under separate cover.)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Douglas, Mr. Blasier, Mr. Snider Chapman, Mr. Scheck. The People are represented by Miss Lewis, Mr. Darden, Mr. Hodgman. Also present is Mr. Hadden who represents a subpoenaed witness, a Mr. Purdy. We have on calendar today a Brady motion at the request of the Defense. The court's understanding of the Brady motions comprise two issues. One, the disclosure of photograph contact sheets. And secondly, information regarding Detective Fuhrman while at the West Los Angeles Division sometime in 1987. All right. Mr. Scheck.

MR. SCHECK: Your Honor, what we propose to do is first is call the following witnesses: Assistant District Attorney Lucienne Coleman, then a police officer named Arneson and then Detective Purdy.

THE COURT: All right. What is your offer of proof beyond the declaration of Miss Coleman?

MR. SCHECK: Well, we had a proceeding in chambers where I laid out much of it, but I think it is contained essentially in the declaration of Lucienne Coleman, and we need to make this offer in order to, first of all, put on the record for the court's benefit what we believe in the course of the investigation of the allegations raised by Miss Coleman was misconduct by the Prosecutors insofar as they failed to pursue adequately the allegations herein, or if it were not by the Prosecutors, a failure to pursue it by Internal Affairs. The problem that we have is that the information contained in the Coleman affidavit and the information that we have obtained in the discussions with these officers, which as the court knows have conflicts with the Coleman affidavit--

THE COURT: Well, Mr. Scheck, let me ask you this.

MR. SCHECK: Yeah.

THE COURT: Miss Coleman's affidavit--Miss Coleman is an officer of this court.

MR. SCHECK: Yes.

THE COURT: Has appeared before this court. I'm well acquainted with her. Her affidavit essentially says certain things were said to me. I passed that information and my concerns based upon that information on to the Prosecution team here.

MR. SCHECK: Yes.

THE COURT: I cooperated and was interviewed by the law enforcement agency that is involved here. She has no direct knowledge of any evidence that relates to the issues in this case. What she merely does is raise certain issues at certain points in time. So why is it necessary to call her as a witness at this point?

MR. SCHECK: Well, actually we made an offer with respect to that this morning to the Prosecutors basically saying that we would--if they would stipulate that Deputy District Attorney Coleman's statements with respect to the Prosecutors was accurate, then she would simply sign the declaration with respect to what we all know is a conflict of testimony between her and the police officers, that we would just put on the police officers. That would have been fine by us. Mr. Hodgman declined to do that. There is another issue as well that arose yesterday in the conversations we had on tape with Detective Purdy, that is not contained in the Coleman affidavit, but is something that she would testify to, and that has to do with this very critical incidents involving Detective Purdy and Mark Fuhrman where Detective Purdy indicated--told Miss Coleman that he had been involved in a case with Mr. Fuhrman, that Fuhrman had done the police report, that Purdy had testified at a preliminary hearing. Subsequently it arose that there was a conflict between--

MR. HADDEN: For the record, your Honor, I'm going to object. I think Mr. Scheck is talking about a matter that relates to confidential personnel files. There is a statutory procedure pursuant to 832.5, 832.7, 832.8 of the penal code, as well as evidence code section 1043, 44, 45, 46 and 47. The Defendant has made no attempt, even though they have had Miss Coleman's--the information from Miss Coleman's declaration as far back as April, possibly even as early as February, the Defense has not made a motion pursuant to those statutes and they should not be allowed to discuss those matters in open court until such time as they do so.

MR. SCHECK: Your Honor, if I just might complete, you asked me why we needed Miss Coleman to testify.

THE COURT: All right. I am aware of that situation.

MR. SCHECK: My point is this is what Miss Coleman would testify to.

THE COURT: I understand.

MR. SCHECK: When we tried to ask Detective Purdy about these matters yesterday, his counsel raised this privilege issue and they refused to discuss it and we have to make a record here with respect to what Purdy told Coleman and then it becomes a matter for the court to pursue and we have our legal remedies under the constitution of the United States.

THE COURT: All right. Let me ask you this: Why was that not reduced to an affidavit from Miss Coleman?

MR. SCHECK: I understand that.

THE COURT: I have tried to avoid the possibility.

MR. SCHECK: I would like to avoid that as well, your Honor, but we did not put these incidents together as clearly until we had a conversation yesterday with Detective Purdy and were able to try to link the one incident where he was--we believe that there probably--and we don't know, because Detective Purdy wouldn't answer the questions, but it is probably the one instance where he was partnered with Mark Fuhrman. And the import of that is that we--is that there is substantial conflicts between Miss Coleman and Detective Purdy about what Detective Purdy said to her and what might have been in the diary of Detective Purdy with respect to the actions of Detective Fuhrman, a diary that he concedes he burned when he knew that it was going to be sought by either the Prosecutors or Internal Affairs, which we consider a potential obstruction of justice. Now, that reflects upon the credibility of Detective Purdy. We have to elicit from Miss Coleman the testimony about that incidents that is not contained in the affidavit because now we see what we don't have--

THE COURT: But let's assume.

MR. SCHECK: --and what we want the court to seek from Internal Affairs.

THE COURT: But let's assume the best possible scenario for the Defense. Detective Purdy comes in and says I worked with Detective Fuhrman back in 1987 at the West Los Angeles Division. The guy was a jerk. I didn't like him, didn't get along with him. He harassed me. I felt--and apparently Purdy makes the statement to Coleman that I would not put it passed Fuhrman to plant evidence. I suspect Fuhrman as being one of the persons involved in putting swastikas on my locker. I suspect him, but I don't know. All right. Is that the essence of what we are talking about here?

MR. SCHECK: No.

THE COURT: What else?

MR. SCHECK: Detective Purdy has admitted he had a diary which he kept with respect to incidents that were occurring to him in the West L.A. Division. I think it is clear from the way he answered the questions yesterday on tape in the presence of the District Attorneys that he was afraid of Detective Fuhrman and other officers in what is known as a SPU unit, a special--

THE COURT: Problems.

MR. SCHECK: --special problems unit, that he thought that he was being ostracized because they thought he was a plant from Internal Affairs Division. He told us yesterday he never heard Detective Fuhrman or ever heard about Detective Fuhrman uttering anything sexist, anything racist or engaging in any misconduct. That is his position. He says in this diary there is seconds about the, as he recalls, the swastika incident, the incidents involving the surveillance that he did, the case he did with Detective Fuhrman that he won't answer any questions about where there was a conflict of testimony between Purdy and Fuhrman and then Purdy went along and conformed his testimony with the police report filled out by Fuhrman, got into trouble and got suspended for fifteen days because his subsequent testimony was different than his preliminary hearing testimony. Our position, your Honor, is we think you should see those records. This was never brought to the court's attention, to the best of our knowledge, because we didn't receive anything from the court in terms of the redaction and the destruction of these logs. We think Detective Purdy, despite his hatred of Mark Fuhrman, is willing, as indicated in the Coleman affidavit, not to testify against Fuhrman. That is what the Coleman affidavit talks about, that Purdy said to her, "I will not testify against the Prosecution in these matters. I will not testify about Fuhrman. I'm going to burn my diary" and indeed he burned his diary.

THE COURT: All right.

MR. SCHECK: He told us yesterday he burned it without even looking at it.

THE COURT: Let's assume that then the logical thing to do--there are two logical things to do. One, file a pitchess motion for Mr. Purdy's file, because if he got fifteen days off, that ought to be reflected in his personnel file. Secondly, you should ask for an order directing--from this court directing the District Attorney's office to go through the vaunted promise system, do a witness search in 1987 for a case where Purdy and Fuhrman show up as witnesses in the same case, and see if you can find the same information that way.

MR. SCHECK: Most respectfully--

THE COURT: All right. So this is a discovery issue at this point.

MR. SCHECK: Well, most respectfully, this is a Brady motion. Our legal position is that our right to confrontation and due process under the United States constitution overrides any statutory privilege about personnel files. There was an investigation with respect to this case by Internal Affairs that presumably this court reviewed. In the redacted versions that we received from this court there is nothing in it about a destruction of logs. There is nothing in it about this situation where Purdy was in conflict with Fuhrman and conformed his testimony. We don't know whether that is true. We don't know whether Internal Affairs followed this up. We don't know if there is anything about destruction of logs which we think is a plain obstruction of justice.

THE COURT: Counsel, destruction of a personal diary--

MR. SCHECK: Oh, no.

THE COURT: --is not a log.

MR. SCHECK: Wait a second. Detective Purdy indicated last night that Miss Coleman did refer to it as a log. He is calling it a diary, but it is very plain, from what he told us yesterday, that he was keeping a diary of incidents involving Fuhrman and these other officers because he had good reason to be concerned about them. He immediately requested a transfer after this swastika incident and was sent out of that unit, but as he indicated yesterday, there was no follow-up, there was no interviews with officers as to who did it and who might have done it and who had access to that locker.

THE COURT: All right. Mr. Scheck.

MR. SCHECK: What we were saying, your Honor--

THE COURT: Mr. Scheck, let me ask you this--

MR. SCHECK: Yeah.

THE COURT: --what you want is access to Purdy's file.

MR. SCHECK: Yes.

THE COURT: You probably want the District Attorney's file so you can also try to backtrack that same case. Assuming you can find that file, then you can get the court file which should have transcripts of all of these things and the differences in testimony, correct?

MR. SCHECK: Yes.

THE COURT: What else do you want?

MR. SCHECK: Well, we also want as part of this, unless the court is willing just simply to accept as true this declaration, which we would hope that the Prosecutors would stipulate to with respect to what they were told and when they knew it, we think there is a serious issue here with respect to prosecutorial misconduct and charges to the jury with respect to what Prosecutors knew about Mark Fuhrman and when they knew it. We also think that--and this is something that I want to add as a grounds for relief--in looking over the pretrial--this all relates, your Honor, to the pretrial discovery efforts or the discovery efforts during the course of the trial by the Defense to find out about Detective Fuhrman and his racist comments, his willingness to manufacture evidence and break rules and also about his credibility and character. In looking back at another one of the motions filed, we sought the psychiatric records of Detective Fuhrman from the police department and the Marine Corps. I commend the court's attention to the affidavit filed by Detective Fuhrman in support of the privacy motion made by Tourtelot who was representing him at that time. I would submit to the court this was a perjured affidavit. In that affidavit Detective Fuhrman indicates that his statements to the psychiatrist with respect to his genocidal statements and his statements in derogation of African Americans and others were not, quote, intended, were not statements that were in derogation of any ethic group. What he said was these were just descriptions in a therapeutic context to my psychiatrist--to the psychiatrist. And it is my understanding that the court didn't seek those files. We want those files as well or we want certainly the court to review those files because we think there is potentially exculpatory and extrinsic evidence with respect to Mr. Fuhrman's mental state. It is going to be argued to this jury, as is evident by Miss Lewis' argument yesterday, that anything that Detective Fuhrman said in these tapes to Miss McKinny and many other statements that he made were all, you know, braggadocio and they are all boasts and things about him and that they are going to make the argument that it is not only impossible, but irrational for him to have planted evidence or covered things--or gone into the Bronco or any things of that nature. He wouldn't have possibly done that because it would be the act of an irrational person. Well, we think that in those psychiatric records as well there may be exculpatory evidence that would indicate exactly what kind of an individual Mark Fuhrman is and why he might do these things that we might be able to present as extrinsic evidence. And we are very, very concerned as to what Internal Affairs and other investigators knew about Detective Fuhrman and when they knew it, because from a constitutional point of view the Prosecutors in this case may have taken all these pieces of evidence that they got from various detectives that were then communicated to District Attorneys and were given to them and they may have said, okay, well, give to it Internal Affairs and we won't pursue it ourselves. That may have been their attitude. But from the constitutional point of view in terms of this Defendant, they are all law enforcement, and we want to find out about all of it under Brady, under our due process rights, and we are concerned that we didn't get everything or it doesn't exist, frankly, in the records that this court turned over to us. And of great interest is the credibility of Detective Purdy as to what he really knew about Mark Fuhrman, why the burning of his diary wasn't pursued, because you can call it a diary, your Honor, but every--

THE COURT: Well, was it an official police document?

MR. SCHECK: No, it was a personal document.

THE COURT: All right.

MR. SCHECK: But your Honor, it is evidence, because from--there may be some conflicts in the testimony about what is in that diary or what he said was in that diary, but there is no conflict about the fact that, A, he revealed it to Deputy District Attorney Coleman, B, he destroyed it because he knew that that diary was going to be sought, and that diary contained information at least about the swastika incident and about this other matter that may have--involving him and Detective Fuhrman and surveillance and et cetera, et cetera and what it may, we believe, have contained. That is what we are pursuing. That is what we want to find out about. And we are very concerned that none of this was pursued. I simply don't understand how a detective can be telling District Attorneys that he destroyed a diary that contained allegations about Mr. Fuhrman in regard to at least the swastika incidents and the other surveillance incident, if not more, and he burns it rather than turn it over to him and that is the end of the inquiry. Where I come from that is an obstruction of justice, because notwithstanding the fact that it is a personal diary, it is now evidence. Any personal matter certainly would have been redacted and taken out of it and not put in a public light. But the point is, what he said about those incidents when he was carefully recording, because of these officers in West Los Angeles whom by his own statement to us yesterday he had good reason to fear, that is of serious interest and could lead to exculpatory information. We didn't know anything about it and that is what we want to establish at this hearing. In addition, with respect to Detective Arneson, he again completely conflicts in his statements with Lucienne Coleman and we think that Lucienne Coleman's testimony and the documentations that she has here in court will prove that he is lying, too. And that is also a matter of serious concern, because it concerns statements that Detective Fuhrman made about Nicole Brown Simpson and her anatomy and private information that he had that should have been pursued in terms of his relationship with the victim in this case and what he knew and when he knew it. And if he was even making these statements, umm, in another context, it goes to his state of mind, his psychiatric condition, frankly, and his bias and credibility in this case and we should have known about it. So that is what we want to pursue at this hearing. We have to make a record in this regard.

THE COURT: All right. Mr. Hodgman.

MR. HADDEN: Thank you, your Honor.

THE COURT: I'm sorry, I want to hear from Mr. Hodgman first.

MR. HADDEN: Clearly, your Honor, pitchess--

THE COURT: I'm sorry, I want to here from Mr. Hodgman first.

MR. HADDEN: Oh, I'm sorry.

MR. HODGMAN: And good morning, your Honor.

THE COURT: Good morning, Mr. Hodgman.

MR. HODGMAN: Your Honor, first of all, for clarity of the record, yesterday we made an inquiry about the court's request of the Defense last week to provide reports to the court of what the Defense has done in the last six months with regard to these various witnesses. And did the court indicate that some reports were received by the court?

THE COURT: No. What was asked were copies of the report that were turned over to the Defense as a result of our discussions back in February of this year. That is what has been turned over to the court.

MR. HODGMAN: Okay. So the court has no information about what the Defense has done in the last six months to pursue the leads which flowed from those reports which the court gave to Defense; is that correct?

THE COURT: Well, the information I have is contained in Miss Coleman's affidavit indicating the conversations that she has had with the Defense and what information was provided and when. I mean, there is--Miss Coleman's affidavit does contain that information.

MR. HODGMAN: Very well. Your Honor, I think it is important for the court and for us all to identify with some precision what relief the Defense is seeking. Now, this morning the Defense raises the notion they apparently want Detective Purdy's personnel files. Detective Purdy is here represented by counsel in that regard, because as the court well knows, there is one exclusive statutory mechanism by which a party, namely, the Defense, can get to those records, and that is a pitchess motion. We considered this once before about six or seven months ago and the court directed, pursuant to the Defense motion brought under pitchess, the court reviewed materials, determined what was relevant and what was not and provided those to the Defense. Now six or seven months later the Defense comes again complaining of their desire to get some type of discovery.

THE COURT: More like five months.

MR. HODGMAN: Call it five months. The point being, your Honor, and as Mr. Hadden has already pointed out to the court, but let me reaffirm, the Defense, at least as of April 17, 1995, and more than likely earlier, has had access to all the people that they wanted to interview, and yet it is only last night that they speak with Detective Purdy. So at this point in time they have an interview from Detective Purdy and the question remains do they want to call him as a trial witness? If so, well, let's obtain the appropriate discovery and perhaps we will run a 402 to see if he has any relevant testimony to offer to this jury. But the proper statutory mechanism for obtaining what they appear to desire, what relief they seek with regard to officer Purdy, is well defined, it is clear, it is the pitchess motion. Now, with regard to the People's obligation to produce material under Brady, it is a principle with which we are well aware and it has been discussed many times in this case, and I think it is prudent just to review some of the salient points of chronology which have led up to today's hearing. First of all, as the Defense concedes and Miss Coleman states in her as yet unverified declaration, the--this information about the log, diary, however we wish to characterize it, did not come to the attention of the People until early February of this year. And the court will well recall what happens after that catalytic event, if we wish to characterize it that way, occurred. I came to this court and informed the court and counsel that some information had come to light regarding Detective Fuhrman because the information perhaps or possibly involved officer misconduct, the information had been referred for investigation to the Internal Affairs Division of the Los Angeles Police Department. That is a matter of record and counsel knows it. The court I'm sure is reminded of it as we speak. Subsequent to that the court conducted an in camera review of that material, whatever it was that was gathered by the Internal Affairs Division of the Los Angeles Police Department. The court made certain determinations as to relevancy.

The court, on March the 8th of this year, directed that certain of those materials, redacted as the court found appropriate, were given to the Defense, as well as to the Prosecution. At that point in time the Defense had in its possession certain information which they were free to follow up if they so choose. Now, we can make an assumption at this point in time that as of at least March the 8th, or shortly thereafter, the Defense was aware of Detective Purdy and other information and at the very least we know from Miss Coleman's own declaration before this court, as of April the 17th of this year they knew everything with regard to what Miss Coleman had indicated to the Internal Affairs officers. So here we are five months later, it is only last night that the Defense has interviewed Detective Purdy that they come before this court and say we want Detective Purdy's personnel records. Well, I think it is appropriate for this court to ask at the very least where were you for the last five months in terms of conducting this investigation? We have--

THE COURT: Mr. Hodgman, do you have any difficulty in at least doing a promise computer search to see if you can find this case?

MR. HODGMAN: No. If the court would like to us do that, I will initiate it today.

THE COURT: All right. You are so ordered.

MR. HODGMAN: And you know, the point--well, this is part of my overall theme before the court this morning, your Honor. We have complied with Brady. Before Detective Fuhrman ever testified the court had issued its order with regard to the pitchess material regarding Detective Fuhrman. We had gone through the proper procedural mechanism so that the--in fairness to all parties, including the Defendant, the People and the officers involved, this material could be reviewed, as it was by this court, and determinations could be made as to relevancy. That has been done. As far as the remaining relief sought by the Defense, the People are well aware of their Brady obligations. We have an ethical duty to turn over information that might tend to be exculpatory to the Defense. We have done that. If we come into possession of other information, we will turn that over. It is the People's position there is no need for a further hearing on this. There is no need for live testimony. The Defense has interviewed quite a few people now. I have made arrangements to facilitate an interview with one remaining Deputy District Attorney with Mr. Shapiro. That Deputy District Attorney for personal reasons is unable to come to this court.

THE COURT: Well, okay. As to that point then, let's assume that Miss Coleman is willing to sign the declaration that is before the court. Do you have any desire to cross-examine Miss Coleman with regards to those issues?

MR. HODGMAN: Perhaps not. It is--we are--the point is with regard to the declaration--in fact, let me clear something up. It was posed to me by Mr. Scheck this morning that we stipulate that all that information is accurate.

MR. SCHECK: No.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. HODGMAN: Okay. Well, Mr. Scheck is cutting out a sub-part of the declaration and that is indeed accurate. All I can say is, and perhaps we would be willing to stipulate, is that this is what Miss Coleman would say if she were called to testify. Whether or not we would cross-examine her, we will reserve that right, depending on how this court decides to proceed with this.

THE COURT: Well, what I--here is how we can do this. Miss Coleman signs the declaration. You have the right to object to the filing of a declaration and demand your right to cross-examine. If you have no desire to cross-examine Miss Coleman as to the contents of her declaration, then we can just have her execute the declaration and be on her way, since I'm sure she has got other things to do today, and then we can litigate this matter further.

MR. HODGMAN: Well, my point to the court is, it is unnecessary to delay this trial and create the specter of yet another mini trial, which prevents this jury from receiving further evidence for some period of time, because we are prepared, as far as the People are concerned, to do, as the court directs and what our own ethical obligations tell us to do. We have complied, and as the court has asked us to check promise and see if there is a cross-over between Purdy and Fuhrman, we will do that today, we are happy to do that. As far as delving into officers' personnel files, as Mr. Hadden correctly points out, there is a statutory mechanism for that, and if the Defense wants to file a motion and take a two-week delay in order to have that heard or bring an order shortening time so that that may be heard more expeditiously. That is their prerogative, the People will not stand in their way, they can file whatever motion they want. The point is after all of that, there is no need for testimony. Let's get on with the trial, your Honor.

THE COURT: All right. So I take it the bottom line then is that you are willing to waive your right to cross-examine Miss Coleman?

MR. HODGMAN: Well, we will reserve that right for now. As yet Miss Coleman hasn't signed the declaration. I believe she will. If the court wants to have a protracted proceeding where we call police officers--

THE COURT: I am trying to avoid that, counsel, by asking you--

MR. HODGMAN: As am I, and I'm saying for now, if it will get this case to the jury quicker, we will waive that right; however, we will reserve it only in the sense if the court is going to allow further testimony from other officers for whatever purpose in connection with this hearing, then we may very well.

THE COURT: You may wish to call her as a witness yourself.

MR. HODGMAN: That's correct. But for the moment, to move these proceedings along, we will waive that right conditionally.

THE COURT: Thank you.

MR. HODGMAN: Now, with that again, I don't know what further relief the Defense is seeking. They have got pitchess available to them. The People have done their part. We did it seven months ago.

THE COURT: Uh-huh.

MR. HODGMAN: So I think we have to hear from the Defense what else is it they want. I will initiate the promise search today and I will provide that to the Defense.

THE COURT: All right. Mr. Hadden.

MR. HADDEN: Thank you, your Honor. As Mr. Hodgman said, and I said earlier, pitchess clearly holds sway here in regards to the personnel issues. I would just like to add or to clarify, rather, make some comments regarding what Mr. Scheck brought up. Just because Mr. Scheck wants to fantasize that this is evidence of--evidence in the diary, doesn't mean that there is any. As we--as my client told the Defense and the Prosecutors yesterday, the diary was kept as a personal matter, that predominantly it contained references to romantic events between himself and his wife which is why it was an intensely personal matter, that he keep it and destroy it. He was not interested in having his personal life exposed to the public. In addition, the incidents that he related about mark--that he had in the diary about Mark Fuhrman, he has already given those to the Defense as well. Miss Coleman's declaration doesn't really say anything to the contrary. Conspicuous by its absence in that declaration is any discussion of actual incidents of misconduct with Mark Fuhrman. She mentions only that he cited some incidents with Fuhrman that were maintained in the diary and nothing more. There is nothing in there, referring to her declaration, nothing in there that references the--any misconduct by Fuhrman in relation to the pertinent issues that have been raised by the Defense in terms of planting of evidence, racism, sexism, et cetera. And what I think the Defense is asking the court to do is to engage in multiple mini trials possibly here and to ask the court, if this were to ever to get in front of the jury, just to wildly speculate as to what might have been in the diary when there is absolutely no evidence there were any references to misconduct in that diary. Thank you, your Honor.

THE COURT: Mr. Scheck.

MR. SCHECK: Briefly, your Honor. I think that there is some confusion here. This is a Brady motion. And let me make very clear that we have newly discovered evidence that has come to light in the Fuhrman tapes that puts this in an entirely different posture and has led us to more vigorously pursue what is in these logs, what is in the--the matters that were referred to you in camera from the Internal Affairs Department and what was pursued in these investigations. We now know a lot more about Detective Mark Fuhrman, his view of policing, the way he proceeded, and most particularly we know a lot more about his activities in 1985, `86, `87, most particularly `87 when he was dealing with Detective Purdy and others in West Los Angeles. We know a lot more now and that is what guides our renewed investigation of this. Secondly, and this goes to the case of United States versus Begley, which is a supreme court precedent that is the touchstone for all of this, we made specific requests for these records and what the Prosecution knew in terms of exculpatory material about Mark Fuhrman, about his misconduct, about his racist attitudes, about his willingness to falsify testimony and manufacture evidence and his psychiatric records. We were pursuing all of that with specific requests. We then received back from the court redacted copies of what had been pursued as an investigation, we take it, by Internal Affairs of the specific incidents involving the swastika, involving the remarks of Detective Arneson in this case. I want to make it very clear that as one element of relief here we are seeking further discovery of those records. As the Begley case makes clear, when the Defense makes a specific response for exculpatory material and then gets an answer from the Prosecution which is incomplete and misleading, that is a problem in terms of the ultimate exculpatory evidence that is discovered. And in fact we are supposed to be given a--an assumption that we would have found more if we pursued this without having been misled. In other words, the redaction that we got from the court contains nothing with respect to the destruction of a diary or log that contained entries with respect to Mark Fuhrman about the Swastika incident and now we know other incidents of relevance in terms of possible perjured testimony by Purdy and/or Fuhrman or falsifying of police reports by Fuhrman. Now, we didn't know about that because when we received these logs--this redaction, there is nothing in there about logs. Now, we don't know whether Internal Affairs, in questioning Deputy District Attorney Coleman, went into the log incident, although we know from her that they did, so we don't know whether the court ever saw anything about that or if you saw anything about that, fully appreciated its significance. But now, having talked to Detective Purdy, having heard the Fuhrman tapes, after pursuing this, we know it is significant and we can now particularize exactly what its significance might be in terms of Fuhrman filling out false police reports, in terms of cover-ups here. Now, our grounds are based on the due process clause and the 6th amendment of the constitution. We are basing it on Davis versus Alaska and a whole line of cases that follow that say statutory privileges with respect to personnel files, whether it be the personnel--the Internal Affairs investigation here that we have already pursued by way of a pitchess motion and we want more of that, we want to see all of that, or personnel files with respect to Mr. Hadden's client about this incident. All those statutory privileges give way to our constitutional right at this late point in the trial to get to the bottom of this. That is what we are saying. That is what we want this court to rule on. That is the record we want to make. Because we feel that this information has been hidden, and in light of the Fuhrman tapes and in light of this man taking the 5th amendment on substantial issues with respect to moving evidence and manufacturing evidence in this case, we want to find out more about it. And it also goes to the court's previous rulings with respect to his psychiatry record. We contend as well, your Honor, that in terms of the Prosecutor's Brady obligations, they can't hide behind the fact that they just dumped all of this to Internal Affairs and now say, well, it is all privileged, you can't see it. We don't think that is adequate. They had an option. They didn't have to send all this information to Internal Affairs to have them pursue it and then try to hide behind some kind of privilege with respect to these records. They could have, should have pursued it themselves. This was information that was being given to them by their own Deputy District Attorneys. They were informed. Be it in February, fine, it is in February at about the time that Mr. Hodgman came forward and mentioned that there was this swastika incident that was being pursued by Internal Affairs. He never told us, I'm sure he will concede, that there were logs that were--diary that was destroyed, destroyed because it was being sought. Because the officer knew the District Attorney's office was going to ask for the diary, he then destroyed it. Now, frankly, with all respect to Mr. Hadden, he is representing his client admirably, I am not fantasizing that Detective Purdy destroyed this diary. He told us that last night. He told us he destroyed the diary after he knew that Lucienne Coleman had brought this matter to the attention of Mr. Hodgman and Mr. Hodgman was going to pursue it. And rather than have this diary examined, and it does contain entries about Detective Fuhrman, he burned it. And it is not an adequate answer to say that it contains personal information. Of course it might have. And as a police officer I'm sure he should have recognized, as a law enforcement official, that the privacy rights with respect to that information would certainly be protected because that is not at issue.

What was at issue was what he had to say Mark Fuhrman and about incidents that were of significance. I should also add in passing, and it is not clear from the affidavit, so the court should just know it, I don't think we mentioned it in chambers, that Miss Coleman indicates in her declaration that she learned from someone, she is not sure who, that there had been reports that Detective Fuhrman had on weekends walked around in nazi uniform.

THE COURT: Isn't that really just another example of all the rumor mongering that goes on about all the people in this case?

MR. SCHECK: Well, no. Your Honor, it is rumor mongering. I just want to--and Detective Purdy--

THE COURT: Something the hallways of the District Attorney's office are well-known for.

MR. SCHECK: But I think that what the court should appreciate is that we have an incident here where Detective Fuhrman is alleged to have put a swastika on the locker--just hear me out for a second. My understanding of nazis is that they don't like Jews, they don't like blacks, they take law into their own hands and they engage--and they have exactly the kind of attitudes that we heard in the Fuhrman tapes. I think it is a fair statement that what we heard in those tapes were the rantings and--they weren't even rantings. Were the calm discussions, the chilling calm of somebody that held nazi attitudes. Yes, if he is the one that put a swastika or was with a group of police officers, which is even worse that putting a swastika on Detective Purdy's locker, and he held attitudes like that, yes, that is Brady material. Yes, that is an indication that he could hold racist attitudes. Yes, that is an indication that he is the kind of officer that would break the rules and manufacture evidence and do almost anything to get a guilty person--person he thought was guilty, a bad guy, the comments that he made about the posses. You know, when you look at those tapes, you know that is exactly what Mark Fuhrman might do because that is what he is talking about at length in those tapes in his own voice.

THE COURT: What is missing in that scenario, Mr. Scheck?

MR. SCHECK: I'm sorry?

THE COURT: What is missing in that scenario?

MR. SCHECK: Which scenario?

THE COURT: Your nazi scenario. Purdy says I suspect Fuhrman was the person who did it; I don't know. So I am supposed to allow evidence that I think it was this guy from this incident in 1974--1987?

MR. SCHECK: No, no.

THE COURT: Okay. Just so we are clear.

MR. SCHECK: No. My point here is that this--

THE COURT: I mean, we can offer--we can have expert opinion as to guilt or innocence of defendants as well.

MR. SCHECK: Our claim here and our concern is what investigation was done and what additional evidence might be out there. We are saying that People did not pursue this. If we are given an opportunity to pursue this with all the facts, we might find evidence that they should have found.

THE COURT: But haven't you had the opportunity since March?

MR. SCHECK: No. What I'm saying very clearly to the court is that because the redaction that we got misled us with respect to the existence of logs and the destruction of logs and from fully learning about the relationship between Purdy and Fuhrman and this potential incident where Purdy was put in a position where he perjured himself for Fuhrman because Fuhrman falsified a police report, if that is indeed the chain of events, we were misled because there is nothing in these redactions that allow us to figure that out and pursue it, so we didn't know it. No. 2, we now have the Fuhrman tapes which puts us in a much--it is newly discovered evidence that puts us in a firm position to go forward and see exactly what Mr. Fuhrman's M.O. was and exactly what his relationship was with Detective Purdy and others of West Los Angeles. Now, it is far clearer to us and much more significant, even if we had had all that information earlier, we could have pursued it earlier, but we were misled because an inadequate investigation was done. Frankly, from what they are saying, no investigation was done about this by the District Attorney's office. Basically their attitude was either, A, get out of my office, I don't want to hear it, or B, here are some things that sound bad, let's just give it to Internal Affairs to investigate. We don't know anything more about it. The Defense certainly doesn't know anything more about it. Then we get redactions.

THE COURT: Mr. Scheck, do you have anything new to add?

MR. SCHECK: No.

THE COURT: Thank you. Do you want to have Miss Coleman execute the declaration?

(Brief pause.)

MR. SCHECK: Your Honor, with respect to that, could we just have the declaration augmented with respect to the conversations that we had with Detective Purdy about this incident with Mr. Fuhrman?

THE COURT: I think that is part of our discussion already.

MR. SCHECK: All right. As long as the court is aware she would affirm that as well.

MR. SHAPIRO: She also has additional information regarding times and meetings with Detective Arneson which are very important and we would like those included also in the declaration.

THE COURT: All right. If you will provide that to the court.

MR. SHAPIRO: Thank you.

(Discussion held off the record between the Deputy District Attorneys.)

MR. HODGMAN: Your Honor, as it appears the Defense wants to amend or modify or supplement Miss Coleman's log, we would appreciate getting a copy of that as well and we advise the court that depending on what is introduced by way of the supplemented declaration, we may very well be filing declarations as well.

THE COURT: All right.

MR. SHAPIRO: These are just additional official documents of the District Attorney's office.

THE COURT: All right. Thank you, Miss Coleman. You are excused.

MS. COLEMAN: Thank you.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

THE COURT: All right. The issue here is as to the Purdy/aaronson issues, that of Brady, and the Prosecution's obligation to make information that is potentially exculpatory or that is exculpatory available to the Defense for analysis. On the basis of the declaration by Miss Coleman, it appears to the court that there were some legitimate concerns raised with regards to Detective Fuhrman at that time and that it was the appropriate course of action for the District Attorney's office to approach the court, to advise the court of that information under our discovery statues, and then to relay to the court that same information after the Internal Affairs investigation had been conducted. This court, on the basis of the Internal Affairs investigation, ordered the disclosure of the statements to Internal Affairs made by, amongst others, Lucienne Coleman, and that disclosure was ordered on March the 8th of this year. I find that the disclosure by the District Attorney's office to the court was done in a timely manner and in accordance with their Brady obligations. Secondly, the information that was given to the Defense at that time was sufficient to allow them to make inquiry into all of the issues that have been raised so far this morning. Specifically, the court refers to paragraph 17 of Miss Coleman's affidavit which indicates that the above information that is contained in this affidavit was all at that time available to the Defense as of April the 17, 1995, that the information regarding Purdy, regarding any diary that he might have kept, any of that information, all of that information was then available to the Defense. So I find no Brady violation with regards to the conduct of the District Attorney's office in this matter. I'm going to order the District Attorney's office to conduct a promise search cross-referencing Fuhrman and Purdy and to deliver that information forthwith to the court. That is a computer search that should be able to be accomplished within one hour. As to the desire for the court to order the production of officer Purdy's personnel file, the obligations under Brady are consistent with the pitchess discovery scheme. As such, it is a discovery device, and if there is Brady material, it will be disclosed; however, this court must abide by the legislature's determination that this is the process and procedure. This information regarding Purdy and this--this information regarding Purdy from Miss Coleman was available for what appears to be the last almost five months, so the court will not take any further action, pending the filing of an appropriate pitchess motion, as to Detective Purdy. The court will entertain a motion to shorten time. All right. Any other Brady issues we need to discuss?

MR. SCHECK: There is the matter of the contact sheets.

THE COURT: I'm sorry?

MR. SCHECK: The contact sheets.

THE COURT: All right.

MR. SCHECK: Is the court--has the court been able to review the request for sanctions?

THE COURT: Yes.

MR. SCHECK: Letter that was submitted?

THE COURT: Yes.

MR. SCHECK: We believe, your Honor, that the testimony yesterday of the other--this week of Mr. Rokahr is extremely significant. It is significant because it establishes that the picture of Detective Fuhrman pointing at the glove occurred at night, not at 7:00 in the morning or about an hour and a half after daybreak. More significantly, it puts Detective Fuhrman in an area by the evidence at a time when he is unsupervised or unobserved, I should say, by others, and it is in complete contradiction not only with his testimony, but an apparent contradiction with the testimony of other officers. The pictures speak for themselves and are extremely powerful evidence.

Now, the problem that we've had in this case, as the court is well aware, is that we have been requesting, A, a photo log or a listing of the order and/or time that pictures were taken, or B, an opportunity--or contact sheets, or C, an opportunity to make contact sheets to the negatives. This was pursued in discovery in pretrial and it was pursued during the trial. Now, Miss Clark got up here yesterday and said that she was able to look at the photographs and see numbers on the face of the photograph and she herself had put together a stack of the photographs in order so that she knew the sequence. Well, that is something that Dr. Lee, Dr. Wolf, Dr. Baden, myself, the other lawyers on this team, could not do for a number of reasons. No. 1, there are different photographs--photographers in this case and the numbers--there were more than one, for example, picture no. 35. No. 2, as the court noted and Mr. Rokahr noted in some of these pictures, the--you can't see the number. And most important of all, your Honor, as the court noted itself yesterday, the best proof, the real proof as to what pictures were taken in what order are the numbers on the Kodak print. That is the real proof. That is the hard-core proof.

THE COURT: Frame number on the film.

MR. SCHECK: The frame number on the negatives. Now, the problem I have, and I mentioned it to Mr. Hodgman yesterday, is that Mr. Hodgman is the lawyer and then later Mr. Yochelson, who was designated to be dealing with discovery for the Defense. And this court is aware, and Mr. Hodgman has conceded candidly with this court, that they had no photo logs, they had no ordering of pictures, that they did not believe, until we discovered this contact sheet from Bodziak, that these contact sheets could be made from the negatives, that there was no ordering. I am very, very troubled by the fact that Miss Clark is telling this court yesterday that she had a list of photographs and an ordering. Well, if she had it and they were determined--they had determined--she had determined through conversations with photographers or detectives on this case, that she knew which pictures were taken in which order, then we are being misled because we are only dealing with Mr. Hodgman and Mr. Yochelson who know of no information in the District Attorney's office or in law enforcement that contain an ordering of the photographs.

THE COURT: Excuse me a second.

(Discussion held off the record between the court and the clerk.)

THE COURT: Mr. Scheck.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: And again, this goes back to the Begley case. We were asking for a photo log or any ordering of the sequence of pictures. We were told there was none. We were told there was no ordering of the pictures and we were seeking the contact sheets, which once again, your Honor, is the best evidence, the only true evidence of what the sequence of pictures are because of the Kodak number, as the court noted itself. And we were continually told that this couldn't be done, this was not available, and we had to sit on the record as it stood, and this is very troubling because we were impeded, all our experts were impeded, and we made repeated requests for it, from figuring out the order of pictures. Now, as the court I'm sure is aware, that when Detective Lange and other detectives were on the stand there were questions of them on cross-examination, they were even shown Mr. Rokahr's earlier statements about his recollections of pictures being taken and when they were taken. We could not, until we got the contact prints finally, which only came about because agent Bodziak requested that the negatives for some of these to be made, and when we saw that that was possible, we then requested that it be done and the court so ordered it. When we got this late in the game, we were then able to interview Mr. Rokahr, establish that these pictures were taken at night, and come up with very significant exculpatory information. We are--this is a discovery violation, particularly if it is true that Miss Clark knew the orders of these pictures. I would note that she also mentioned in passing--well, that is really the point. We were misled on this point and we are entitled to an instruction, as outlined in the sanctions motion, that we were deprived of this material and an opportunity to get the contact sheets in the best proof of what pictures were taken in what order, until this date, and we think that that is an inference that we are entitled to, because this was a--I think the requested sanction that we outlined in that letter is strictly factual. There is another detail that is outlined there, umm, and Mr. Hodgman and Mr. Yochelson were going to try to get it, but I asked them as early as the first day last week, I think it was, umm, Wednesday or Thursday of last week, I can't recall which, when we first saw the Bodziak contact sheet, we asked how long the Prosecution had been in possession of that. And they were unable to get the date because that had come to Mr. Goldberg. Do we have the date on that? Do we know?

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. SCHECK: Well, now I'm told it is within a week or two of Dr. Lee's testimony, but our point is--

THE COURT: Before or after?

MR. SCHECK: Before. It should be before, but there should be some transmittal record that gives a date. I left--in the sanction motion that date is blank, but the point is that we have been asking for this all along, and once they got a contact sheet, that is not impeachment material, that is something we have been requesting from the beginning. Because it had obvious and crucial evidentiary significance.

Rokahr's testimony is highly exculpatory. We should have had that in our possession so we could have confronted all the witnesses at the time they testified at this trial and cross-examined them about it and pursued exactly where all these detectives were at what time between the Bundy and Rockingham locations. Because the state of the record now I think is devastating to Detective Fuhrman's credibility and calls into question all the other officers' testimony. In addition, we think we have a right, and we have requested this in our Brady motion, and it relates to these contact sheets, to the investigation by the Los Angeles Police Department that Chief Williams has talked about where they said they interviewed everybody and they determined that Detective Fuhrman couldn't have possibly transported a glove from Bundy to Rockingham because they had interviewed everybody and they pursued all leads and conducted a complete investigation. Well, how can you conduct such an investigation without reviewing the contact sheets and the photographs and determining when these pictures were taken and the order in which they were taken? And we would like to see that report which purports to say that Detective Fuhrman couldn't have had access to that glove, because we think now in light of the Rokahr testimony it calls all of that into question.

(Discussion held off the record between Defense counsel.)

THE COURT: People.

MR. HODGMAN: Thank you very much, your Honor. Your Honor, I think the critical issue here is did the Defense have what the People have had and did they have it at roughly about the same time? Mr. Scheck's chronology of the contact sheets is a little bit incomplete. We've talked about this informally, but let me advise the court of the more complete state of affairs with regard to the contact sheets. It is indeed true that early on in the discovery process the Defense inquired about a contact sheet. We didn't have a contact sheet. The Prosecution did not have a contact sheet. We so advised the Defense. We did, however, in order to ensure that the Defense had all photographs, make our photo volume, if you will, available to the Defense and those photo volumes did have some sort of rough order and that was based on something that we observed in the photos and that the Defense had in their photos, that is down in the lower right-hand corner there is sort of a little number imprinted in orange.

THE COURT: It is called a data back imprint.

MR. HODGMAN: Okay. I didn't know that. Umm, but which was in our photos from which we deprived some sense of order and which the Defense had as well. In addition, we displayed all the photos to the Defense early on, probably a year ago at this point, to the Defense with our--our little photo albums, if you will, of the photos in order, but we did not have contact sheets. In fact, the truth of the matter is the People did not have their own contact sheets until after the Defense did, and that portion of the story goes like this: The Defense requested an opportunity to view some photographs that had been utilized in connection with Dr. Lee's testimony and Mr. Yochelson and I procured those photographs which were in a big box that had been sent out by Mr. Bodziak to Mr. Goldberg somewhere we know a week, possibly two, in advance of Dr. Lee's testimony in order to prepare for lee's testimony. Primarily they were photographs which had been enlarged. There were a couple that were magnetized. And contained within that box was a large proof sheet which appeared to have a number of negative strips in some sort of order. Now, we find out from Mr. Bodziak that these were strips that were selected by him and placed on that sheet and that these are not a true contact sheet. These were simply a series of photos that Mr. Bodziak found of aid to him.

THE COURT: All right. Then what is Defense exhibit 1366?

MR. HODGMAN: I don't know.

MS. CLARK: I'm sorry. Say it again, your Honor?

THE COURT: What is 1366? Is this an enlarged contact sheet or is this a--actually a proof sheet. Let's ask the photographers. What do we call something--I think it is a proof sheet--if it is in order, same size as a negative?

AN UNIDENTIFIED PHOTOGRAPHER: That would be an enlarged contact sheet. The contact sheet would be the size of the negative which is one-by-one-and-a-half.

THE COURT: Expert testimony for free.

MR. HODGMAN: Very good. Now we know that it is a contact sheet. What the court has, I believe, is something that was created last Friday, with the aid of the Prosecution, wherein we worked out an arrangement with the Defense where an investigator of ours would go with all the negatives to the lab of their choice.

THE COURT: Excuse me, Mr. Hodgman. I just wanted to make sure. 1366 then is not the Bodziak contact sheet; it is something that was prepared and produced--

MR. HODGMAN: Yes.

THE COURT: --last week. Okay.

MR. HODGMAN: And with regard to that, that was created last Friday and we infer from that process that the Defense hasn't given us the products of that effort that they created their own actual contact sheets with photos in order. The People did not have that over the weekend. I directed the LAPD photo lab to prepare an actual contact sheet so that we did have something with all the photos in order as best as we can determine. That was prepared on Tuesday. I had a set made for the Defense and we have turned that over by way of discovery, so truth be known, the Defense actually had their own contact sheet with photos in order before the People did.

THE COURT: Mr. Hodgman, shouldn't I be troubled by the fact that this request for either a photo log or a contact sheet was made ages ago?

MR. HODGMAN: Well, it was a discovery request, and at the time, if the court will recall, it was in the midst of many, many, many discovery requests.

THE COURT: But this is--crime scene photos are pretty fundamental stuff, aren't they?

MR. HODGMAN: Well, had the Defense come to us and simply asked can't we work this out, I think the People would have seen the value in that, would have appreciated getting them, too. It never arose to that level until we opened Mr. Bodziak's box and then very promptly thereafter we obtained the contact sheets for the Defense. The contact sheets never existed. They were never prepared until Tuesday of this week, at least on the Prosecution side.

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: But since their request was specifically for a contact sheet previously that we discussed, I mean, wasn't it incumbent upon the Prosecution to at least see if that was available?

MR. HODGMAN: Honestly, had they made a request, and they could have come before the court, we could have had a direction to do that. The problem is, it did not exist. It wasn't made. A contact sheet was not prepared until just this last week.

THE COURT: But contact sheets are something that have routinely made by photographers, especially photographers who take hundreds of frames. They don't want to print each one just to look at it and see which one they want to enlarge. I mean, it is done to conserve materials, it is done to conserve time. It is something any professional photo lab, which I assume the LAPD lab would qualify as a professional photo lab, would be able to produce with no problem whatsoever.

MR. HODGMAN: Your Honor, the--

(Discussion held off the record between the Deputy District Attorneys.)

MR. HODGMAN: With regard to that, your Honor, the People are under no obligation to create evidence. We did not have a contact sheet. We did not have a contact sheet until actually after the Defense had a contact sheet. If the order of photographs were of such paramount importance that it had risen to that level, they know me, we could have done something about that. It never rose to that level until just recently, and with regard to that, again, it was--

THE COURT: How recently?

MR. HODGMAN: The first time it became--it arose to this level of attention, would be Mr. Scheck, Mr. Blasier and Mr. Neufeld and Mr. Yochelson and I went through a box of Mr. Bodziak's photos, approximately a week ago Thursday, because it was Friday--almost immediately we arranged for you guys to make the negative sheet; isn't that right?

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: Mr. Hodgman.

MR. HODGMAN: Yes, your Honor. Just to supplement our argument, we have the Defense photo books and I think the court should take a look for itself at the photos with that little number which the court correctly identified in the lower right-hand corner, so they had some idea of the semblance of order.

THE COURT: So you are saying no harm, no foul?

MR. HODGMAN: I'm saying we do not have an obligation to create evidence, and I'm saying when it did arise to a level of such interest for the Defense, we reacted. We facilitated them going to a private lab, obtaining their own proof sheets. We showed what Mr. Bodziak had sent out. And then in addition, because as of Tuesday the People did not have their own contact sheet, when we came into possession of a contact sheet, we provided it to the Defense. The contact sheet did not exist until Friday of last week when the Defense created their own in a manner that we facilitated, but we even had our own contact sheet. We when got the evidence, we gave it to the Defense.

THE COURT: All right. Thank you, counsel.

MR. SCHECK: Respond?

THE COURT: Briefly.

MR. SCHECK: Your Honor, there are at least two photographers who took photos on June 13th, and when you look at these sets of photos, there are numbers that are the same. In other words, there will be a 14 or a 35 in those little dots--those little numbers across the face of the photo that are the same from two different--and some of these numbers don't show up at all. So Mr. Hodgman is saying that, well, there is a rough order, but we found this extremely confusing and a number of times asked, I'm sure he forgot that, and in fact in previous representations about this issue to the court acknowledged that several months ago Mr. Neufeld specifically came to Mr. Hodgman and again renewed this request for the contact sheets and an ordering of the pictures. And I think as Mr. Hodgman will concede, he said at that time, and it has been the People's position, that they did not have any and could not make any available. Now, that is what we think is the problem.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: And we--when he indicated that they did not have any available, we asked for access to the negatives and he indicated that that couldn't be done. Now, what did happen last week, after we saw the Bodziak sheet and we realized that it could be done or at least they would agree to have it done, is that we went over to the lab and Mr. Neufeld was there with a representative of the District Attorney's office and so they were there when the sheet before you was created.

THE COURT: 1366?

MR. SCHECK: 1366. Our point is this: There may be a left hand not knowing what the right hand is doing problem in the District Attorney's office. It may well be that Miss Clark knew the order of all these photographs from her precise investigation in looking at the numbers, but we certainly never did, and we complained about it long and loud and a number of times to those assistants that were in charge of discovery. And we were told it is not available, can't be made available. There are no negatives available to make, this can't be done. And as Mr. Hodgman just said, they took the position that they did not have an obligation to create new evidence or new contact sheets and they had no photo log or ordering. Now, what this did for the entire case is put us at a severe disadvantage because we couldn't figure out sequence in--with--in a hard definite way, and the only way that you could do as a lawyer what we did with Mr. Rokahr, this week, was get those Kodak numbers, take those sheets, lead him through it step-by-step in order to firmly, irrefutably document that that picture was taken at night.

You can't do it any other way. And we were trying to do it and we should have been--we were entitled to this. It was easily available. And I don't think they can stand on the ceremony of saying, well, we couldn't make it, we didn't make it, it wasn't available to us, we have no obligation to produce it. We say they had an obligation to produce it and they liked it just fine that we couldn't firmly establish the sequence of pictures and that the crime scene photos--as the court noted, it is a basic. Dr. Lee testified, Mr. Ragle testified, our experts kept on telling us, they had never heard of a crime lab that didn't have a photo log that at least gave you the orders, if not the times, that pictures were taken. And we have been seeking that from the very beginning of this case and we have been frustrated and the jury is entitled to know that. They had an obligation to turn this over. We were being misled about it and we were not--despite specific and repeated requests for contact sheets and negatives which could have been made available or a photo log that gave us an order of pictures, the People didn't turn it over. When it finally became clear that this could be made because Bodziak did something like that and we were able to secure the negatives for purposes of a contact sheet, we came up with highly exculpatory evidence that we should have been allowed to confront officers with earlier and the jury is entitled to know that they didn't do it.

THE COURT: All right. Thank you, counsel. All right. I will take this matter under submission.

MS. CLARK: Your Honor, we need to supplement the record.

THE COURT: I'm sorry.

MR. HODGMAN: Your Honor, with the court's permission, the record is a might incomplete and I would like to take just a moment to make it complete so that the court has all the information upon which it can base its decision.

THE COURT: Briefly. Two minutes.

MR. HODGMAN: Yes. I will be less than that. First of all, with regard to whatever Miss Clark did with the photos, she made her own rough order based upon the little orange numbers in the lower right-hand corner. The same--she was under the same deficits and disadvantages as the Defense. She simply was trying to put them in some sort of order so that they made some sort of organizational sense for the People.

I'm sure the Defense attempted to do the same. I understand that they did when Mr. Cochran interviewed Mr. Rokahr I believe in this very courtroom, and appeared to have photo books based upon some sort of logical order. Secondly, at least as of last August we offered to the Defense an opportunity for them to come over and examine our photo books. Mr. McKenna came over to our offices, met with Mr. Fairtlough and the Defense photos were in such a condition that very little effort was made to put them in some sort of order based on our books at that time. We extended an invitation to Mr. McKenna to come back and finish up, based upon what we had in our photo books, and that invitation was never accepted. Mr. McKenna never came back. Thirdly, the recollection of Mr. Scheck and apparently Mr. Neufeld and myself differ in this degree. I have been consistent in saying there has been no contact sheet in the possession of the People and that is true. That is absolutely true. With regard to could it be made, that is where our recollections differ. I would have to assume there is some way that this could be done, but again, the Defense didn't appear to get very agitated about this until just very recently. That is all I have to say, your Honor.

THE COURT: All right. Thank you, counsel.

(Brief pause.)

MR. HODGMAN: Where our recollections differ as well, I do not personally recall any requests to make a contact sheet. I would have to assume that in the event that requests were made I would have looked into it because that is what I do every time I get a request from the Defense, so our recollections differ in that respect as well.

THE COURT: All right. Thank you, counsel.

MR. SCHECK: Your Honor, we have a different motion just very briefly. As I recall, we had filed--this related to Brady. We filed a request for the questions propounded by the court to Prosecutors regarding the Detective Fuhrman prep session and I think that is still outstanding.

THE COURT: Okay. All right. Let's take that up at a later moment.

MR. COCHRAN: Your Honor--

THE COURT: Mr. Cochran.

MR. COCHRAN: Yes. Good morning, your Honor.

THE COURT: Who is next?

MR. COCHRAN: Our final witness, your Honor, is Detective Mark Fuhrman, and we are ready to proceed.

THE COURT: All right. How do you propose to proceed?

MR. COCHRAN: Well, we would like to call Detective Fuhrman to the stand, your Honor, and ask him--get his lawyer down here and ask him a series of questions or as many questions the court thinks is appropriate and then move ahead.

THE COURT: All right. You have just filed your memorandum of points and authorities this morning.

MR. COCHRAN: Yes, we did.

THE COURT: I have not had the opportunity to read it yet.

MR. COCHRAN: I understand, your Honor, and I know you have been busy, so I just wanted to indicate we are at that point, other than those lingering motions.

THE COURT: All right. Are both sides ready to argue this motion?

MR. COCHRAN: I believe, your Honor--

THE COURT: I will hear argument.

MR. COCHRAN: Do you want to read our motion first, your Honor?

THE COURT: Well, this issue occurred to me a long time ago.

MR. COCHRAN: Okay.

THE COURT: So I have thought about it.

MR. COCHRAN: All right. I'm going to ask Dean Uelmen to argue the motion, your Honor.

THE COURT: All right. Mr. Uelmen.

MR. UELMEN: Once again your Honor is confronted with a unique unprecedented situation.

THE COURT: Well, that only happens about twice a week.

MR. UELMEN: Well, we have filed a request for remedies this morning that suggested three remedies for the invocation of the 5th amendment by Detective Fuhrman. First to allow us to call Detective Fuhrman in the presence of the jury, or alternatively, at least permit the testimony presented yesterday invoking the privilege to be read to the jury. Secondly, a special jury instruction advising the jury of his unavailability for further cross-examination. Umm, and finally, the admission of portions of the tapes and transcripts regarding prior acts of planting or manufacturing evidence to now be admitted as declarations against interest. The memo filed by the People of course takes a rather different view of how we should proceed from this point suggesting that we simply do nothing, that we do not inform the jury of what happened yesterday and just proceed with the jury in a vacuum in terms of what became of Detective Fuhrman. It is interesting that every case cited by the People in their memorandum involves essentially the same situation and that is a witness who is called cold and invokes the 5th amendment. Not one of these cases involves a witness who invokes the 5th amendment after testifying on direct and cross-examination and after the jury has heard that testimony. Now, the apparent reason for the invocation of the 5th amendment privilege here is this witness' concern for Prosecution for perjury for the testimony he presented to this jury. And we don't challenge that invocation of the 5th amendment. I think under these circumstances that is a realistic concern of the witness, and the case law seems to confirm that where a witness faces jeopardy of perjury Prosecution for testimony previously presented in the case that the invocation of the 5th amendment is privileged or is appropriate.

But the situation before your Honor then is very unique and very different from the situation posed in any of the cases cited by the--by the Prosecution. Your Honor is presented with a conflict between the Defendant's right to present a Defense and the witness' right to invoke a privilege. While that is a unique situation, your Honor, it is not unprecedented, and we have found two cases in California that address the appropriate alternatives that the court should consider when it is confronted with this situation; the Reynolds case and the case of People versus Hecker. And we believe the Hecker case is most in point. Hecker involves a situation where a Defendant is charged with a molestation. He brings forth a witness who will offer testimony that three days before the accusation of the molestation the Defendant's wife called him and sought to arrange a romantic relationship and he informed her that that might be possible once her husband was out of the way, and then three days later she accuses her husband of molesting her child. When this witness was presented, however, information came forth that the witness had some baggage. The witness had apparently made an offer to the wife to pay her if she would drop the charges against her husband. That of course involved potential criminal liability of this witness and the witness indicated that with respect to that--that incident of offering to pay the wife, he would invoke the 5th amendment privilege, but of course the invocation of that privilege would then render his exculpatory testimony unavailable. And the court in the Hecker case said the appropriate way to proceed under these circumstances is to permit the invocation of the privilege in the presence of the jury so that the jury knows the--the area in which the Defendant is--or the witness is invoking the privilege and can simply balance that then against the testimony, the exculpatory testimony that the--that the witness presented. And it is interesting that both the Hecker case and the Reynolds case cited by Hecker cite and rely upon the decision of United States versus Hearst, a case with which one of our co-counsel was intimately familiar, a case in which the Defendant herself in the presence of the jury invoked the 5th amendment privilege 42 times. If I believed in the lottery, I think the no. 42 might have some significance, it keeps coming up here. But in that case the court ultimately determined that the invocation of the privilege was inappropriate, that the privilege was waived by Miss Hearst getting up and testifying herself, so she really didn't have a 5th amendment privilege. But it is interesting that both Reynolds and Hecker deal with situations where the court concludes the claim of the 5th amendment was legitimate, that the witness had a 5th amendment right to refuse to testify. And the court in those cases suggested, well, the appropriate way under these circumstances to balance the Defendant's right to present a Defense against the witness' right to claim the privilege is to let it happen in front of the jury and then let the--let the jury sort it out, because under these circumstances the claim of the privilege is relevant to the assessment of the witness' credibility. And in both of these cases it was not appropriate to simply strike the testimony of the witness, and of course that is not an appropriate alternative in this case. That would deprive the Defendant of essential evidence presented in furtherance of his Defense.

THE COURT: So you are specifically not seeking a--

MR. UELMEN: We are not seeking that the testimony be stricken.

THE COURT: All right.

MR. UELMEN: But we believe it is appropriate that the jury know that Detective Fuhrman is invoking the 5th amendment with respect to further cross-examination and they should hear that cross-examination and that invocation of the privilege in their presence. We also have submitted, your Honor, a proposed jury instruction which is tailored and molded on the instruction approved by the supreme court of California in the case of People versus Hill. That proposed instruction simply tells the jury that: "Out of your presence Detective Mark Fuhrman"--this is an alternative, of course--"Was recalled for further cross-examination, that Detective Fuhrman, with the advice of his counsel, refused to testify, basing his refusal upon his constitutional privilege against self-incrimination, thus Detective Fuhrman is unavailable for further cross-examination. His unavailability for further cross-examination is a factor you may consider in assessing his credibility." This is, with the exception of the last two sentences, word for word identical to the instruction given in Hill. We also believe the last two sentences are appropriate because, unlike in the Hill case, the jury has heard the testimony of this witness, they have heard a great deal about this witness, and they are going to wonder what happened to him? Where did he go? Why was he not recalled by the Defense? And this instruction simply informs them that he is unavailable and tells them why he is unavailable. It does not invite speculation about the invocation of the privilege. It just tells them that the invocation of the privilege has made him unavailable and that his unavailability is a fact that they can consider in assessing his credibility.

THE COURT: But then shouldn't I include, if I accept this proposal, shouldn't I then include a sentence saying "You are not to speculate as to the reason for the invocation"?

MR. UELMEN: We do not believe that would--that would be appropriate in a circumstance where the reason for the invocation of the privilege relates to the possibility of perjury in the prior testimony, so we don't believe that--that instructing them that they should--they should not speculate with respect to the invocation of the privilege would be appropriate under these circumstances where the--the Defendant's right of--of confrontation and right to present a Defense is impacted by the--by the invocation of the privilege. But we have not proposed any instruction one way or the other about the impact of the invocation of the privilege. All that we are proposing is that the jury be told he is not available and his unavailability is relevant with respect to his credibility. Your Honor, the third remedy that we seek invites the court to revisit, and I know this is not an invitation that the court will welcome, but we believe that the--the invocation of the 5th amendment privilege, since it has made Detective Fuhrman unavailable for cross-examination about the prior incidents of planting or destroying evidence, which your Honor had indicated was not foreclosed by the--by the prior order of the court, since he is now unavailable for that cross-examination, that those prior statements now qualify as declarations against interest as an exception to the hearsay rule. And we have proffered five very limited excerpts that deal specifically with ripping up driver's license, scratching scabs, giving testimony as needed, whether he saw the events or not, that those particular excerpts from the McKinny tape do now qualify as declarations against interest. In fact, they really present us with almost textbook examples of declarations against interest. Your Honor will recall that California evidence code section 1230 provides that: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness," which clearly the invocation of the privilege makes Detective Fuhrman unavailable in this case, "And the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest or so far subjected him to the risk of civil or criminal liability or so far tended to render invalid a claim by him against another or created such a risk of making him an object of hatred, ridicule or social disgrace in the community." I can't imagine any statements that could have more subjected a person to the kind of hatred, ridicule and social disgrace in the community that--that Detective Fuhrman now faces, than the kind of statements he made in those taped conversations with--with Miss McKinny. And the community that we are talking about of course is Los Angeles, not Standpoint, Idaho.

THE COURT: Well, counsel, let's not cast aspersions on the state of Idaho gratuitously.

MR. UELMEN: I don't intend to, your Honor. What I'm saying is that under this exception to the evidence code, the social disgrace that the witness, at the time he makes the statements, may be subjecting to is a social disgrace in the community of Los Angeles and that is where these statements were made and that is the--the degree of social disgrace that we are looking at. And this exception to the--to the hearsay rule really adds a new dimension to the probative weight that your Honor must balance under--under 352. So we believe it is appropriate to once again consider the offer of these declarations against interest. And in fact the Hecker case also mentions as an alternative where a witness has taken the 5th amendment that prior statements then become declarations against interest and can be offered in evidence in addition to the witness appearing before the jury and invoking the 5th amendment in the presence of the jury. So once again, the court may look at these as alternatives, but we believe we would be entitled to do both; to call Detective Fuhrman and if he takes the 5th amendment in the presence of the jury, to then offer these prior declarations against interest since we are foreclosed from confronting him with these statements and cross-examining him about them. And the statements go directly to the precise issue before the jury. They go directly to the--the incidents in the tape where there is discussion of destroying evidence or--or manufacturing evidence. So we believe, first of all, our--certainly our first choice would be to recall Detective Fuhrman in the presence of the jury. Alternatively to at least instruct the jury of his unavailability because of the invocation of the 5th amendment, and that that can be considered as bearing on his credibility. And finally, to permit now the admission of these five very limited excerpts from the McKinny tapes and transcripts.

THE COURT: Thank you, Dean. Miss Clark.

MS. CLARK: First of all, your Honor, with respect to--

THE COURT: Good morning.

MS. CLARK: Good morning. With respect to the motion to have the witness take the 5th--invoke the 5th in front of the jury, what is good for the goose us good for the gander, your Honor. If the People can also have the jury informed that the Defendant has invoked his right, then that is fine, and I would ask that the court add the prophylactic to this as well that the jury is not to speculate why he invoked his 5th amendment right. You know, I mean, it is the same improper thing. Now let me cite the court to section 913 of the evidence code. I don't know if the court has had the opportunity yet to read the People's brief. Has it?

THE COURT: I have not read either brief, but I have contemplated the issue, because the issue became apparent weeks ago.

MS. CLARK: That was coming, right, as did I, which is when I did the research and then asked a motion be prepared on it.

THE COURT: And it appears obvious that I'm going to have the lunch hour to read these things.

MS. CLARK: Right. You won't have to decide it now. So let me cite the court to that, and when the court reads that and reads our brief, I think that it will be very clear, because the case law is actually very clear, thankfully, on this issue. It is very clear from the evidence code that there is to be no comment on or any inferences drawn from the exercise of a privilege and that a jury--that for a jury to be informed of the invocation of a privilege is highly inappropriate and not to be countenanced. The case law that is on point in this regard is clear, and in our motion we cite the court to People versus Ford, a case that--that I think our office is uniquely familiar with. In that case, though, it was indicated from Ford and its progeny repeatedly that the witness should take the 5th outside the presence of the jury and the jury should not be instructed that the witness has done so. And there are a number of cases in that--since the court is going to read the brief, I'm not going to go over each and every case in that regard. Let me simply point out, though, I think it is more germane and productive of the court's time that I distinguish the cases cited by the Defense. The cases cited by the Defense beginning with U.S. versus--U.S. Versus Hearst, we have a completely different situation. In that situation Miss Hearst elected to take the witness stand and speak, testify, and in essence what the court found was you have waived your privilege, you really have none. And so if you decide you will not answer certain questions of the Prosecution, the privilege having been waived, it can then be remarked upon to the jury because everything is fair game. You have--you have--you have lost the cloak of invulnerability that the privilege gives you, and once that waiver has been given, everything that you say is fair game, including your desire to invoke as to certain questions, because there is no such thing as a limited right to invoke in which you invoke in some questions and not in others. Once you waive, you waive. And that was--that is exactly what is so unfair about what the Defense deliberately did to Mark Fuhrman yesterday. I don't stand in his Defense. But you know, you've got somebody on the ropes, he has taken every hit that they can think of to give him. I'm not saying they are inappropriate. But to then--but to then get up and ask him another question they know he cannot afford to answer any questions or there will be a waiver deemed, and to maybe some of the past acts of misconduct and they may be something as simple as--as simple as calling someone in a rude manner, not even using an epithet, but saying, hey, you son of a gun, or, hey, you son of a bitch, or something like that, officers get time off for that. Officers get reprimanded for that. What you do know is why he was going to invoke and that is why it is improper to speculate. That is why any kind of instruction that a witness has taken the 5th should never be given because no matter how many times you tell they don't speculate, that is precisely what the jury is going to do. And that is precisely what Mr. Cochran is asking the world to do with respect to the improper question they posed to Detective Fuhrman yesterday, whether or not he planted evidence, knowing full well that he did not plant evidence, knowing full well that he could never say he didn't plant evidence because the minute he answered that question there is a waiver. It is unfair. This highlights exactly why that is unfair. Excuse me, your Honor. Anyway, U.S. versus Hearst, in that case there was a waiver and so then she invoked. It was proper under those circumstances, with her invoking on the witness stand, to comment on that. Goes to her credibility, it goes to her demeanor, because there is a waiver, so she no longer has the protection of the 5th amendment. With respect to--with respect to the Hecker case--

THE COURT: Excuse me, counsel. Could you approach the side bar without the court reporter, please.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: Miss Clark.

MS. CLARK: Thank you, your Honor. The Hecker case is also easily distinguished. In that case, first of all, the witness intended to invoke at the time of his initial testimony. That is a significant difference, because, no. 1, is when you know in advance that a witness is going to invoke before they take the witness stand at all in the case, in that situation it is improper to have the witness invoke in front of the jury. What you do is you let you witness invoke and then he is taken out of the presence, the jury is not informed. In that particular case, though, it was dicta because what happened was in that case the witness intended to invoke at the time of the initial testimony, and the court, I believe--yeah, the court was concerned that it would have to strike all of the witness' testimony if the witness invoked as to any of the parts he was intending to invoke. And so what the court did, I believe, was find that there was another way it could have been handled. It found that it was appropriate not to allow the witness to testify under the circumstances at all but it said this: "That if the party calling the witness knew the witness intended to invoke as to certain subject matter, but not as to others, and the party was willing to take the liability of a witness who would invoke as to certain things and not as to others in return for getting some of the testimony, that that party was willing to accept the liability could do so." Of course the jury could then see the witness invoking, but the party has gone into the situation with eyes opened. It was an observation made in dicta in the case. It in no way indicated that it approved of the practice of having a witness invoke outside the presence of the--in the presence of the jury or have the jury informed somehow of the witness' invocation where the party calling the witness did not intend to take that liability on as a conscious thing.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Thank you. As Miss Lewis points out, that was also an appellate court case that was decided before--before 1990, before the supreme court cases that indicate in no uncertain terms and in very clear language that this should not be done in the presence of the jury and the jury should not be informed of the witness' invocation. People versus Hill, also cited by the Defendant, did not, did not urge or approve that the jury be informed of a witness' invocation. It simply found that informing the jury in that case of the witness' invocation was harmless error under those facts because the jury was in fact told by the Judge why the Defendant--the witness was not available. In that situation the Defense had gotten in the witness' statement which was self-incriminating which explained--it was an incriminatory statement, and I can't remember what it was. They got that in the absence of the witness, and I believe it was under 1230 in that case. The Judge, in order to prevent the jury from speculating as to why it came in without the witness testifying on the witness stand, told them that the witness had invoked. What the court found that to be was harmless error; error nonetheless. Harmless because it was clear that the statement was self-incriminating and so the fact that the Judge ultimately did tell the jury that that is why the witness wasn't there kind of didn't matter, but it certainly did not urge or approve the practice urged upon this court by the Defense in any way, shape or form. With respect to the 1230 argument proposed by the Defense, the Defense is now seeking to back door the court's ruling to get in what the court has already deemed to be inadmissible. The same observations apply now as they did then. Unless these statements are true, they are not probative, they are not relevant, and unless we engage in the mini trial of whether or not they are true and how to determine whether or not they are true, they should not be deemed admissible because they are not probative of anything. Also, consider that under 1230 of the evidence code, your Honor, these statements have to have been made in a manner that the witness would think to be damaging to him in either a pecuniary, social or proprietary risk of civil or criminal liability. Excuse me. Now, first of all, pecuniary it is certainly not. He intended to make money on this. But more important than that is that these statements were made in confidence, as Laura McKinny herself stated. There was not an intent for him to publish the tapes obviously. The intent was for the information that was imparted to her to be made part of a fictional work. And now we come into the trustworthiness aspect of every evidence code section. Excuse me, counsel. And under this section the trustworthiness has got to be deemed absolutely nil. We have Mr. Fuhrman making remarks to the screenwriter for the purpose of creating a fictional work. No matter how hard the Defense wants to claim that this is based on reality, this is based in fact. Miss McKinny testified before this court that there was no evidence made to fact check anything that he said, because it didn't matter. It didn't matter whether it was true or not. All it mattered to her was to get his statements, his stories, whether they were true or not. It was information she could use to make a work of fiction. It was not a documentary. And she made that very clear as well. As a matter of fact, the statement she made in North Carolina was "We intended to make up a story." So we have no trustworthiness with respect to any of the events here. The court also already properly ruled that these statements are inadmissible for all of the reasons cited in the brief. I think it is inappropriate and not productive of our time to go back into all of the arguments. The court is very well familiar they cannot be proven true. If not true, not relevant. They are certainly not probative. They were made under circumstances that make them highly suspect after their trustworthiness or veracity. They were made in confidence. And so they don't satisfy any of the requirements of evidence code section 1230. In conclusion then, your Honor, I think that once the court has had an opportunity to read our briefs, and I'm sure the court is familiar with the case law, the case law is clear, thankfully in this matter, that the Defense has no right to have the jury informed of Detective Fuhrman's invocation of the 5th amendment in any way. That would be inappropriate. It would be inappropriate because it causes them to speculate as to why. In the alternative, if the court deems it appropriate to so advise the jury, I do urge the court to advise the jury also that Mr. Simpson has invoked his right against self-incrimination, and if the court deems that appropriate, that then tell them not to speculate about either one because the improper speculation--

THE COURT: We will just toss griffin out the door?

MS. CLARK: Well, that is fine. They away--throw away griffin. They are asking you to throw away case law as well, your Honor. They are asking you to throw away the case law that is cited in the People's brief, supreme court cases, People versus Ford, People versus Mincey. If you are going to throw those out, throw out griffin. I'm not saying that the court should do that. I'm saying that they are equally inappropriate. It is slightly different as to a witness because the witness may take the stand and then all of a sudden invoke and require that there be some kind of measures taken to inform the jury they should not speculate. But when it is known that a witness will invoke, it is not to be done in front of the jury for all of the same reasons it would be inappropriate to do it for the Defendant, because people will speculate no matter how much you tell them not to. With respect to evidence code section 1230, that simply has not been satisfied in any way.

THE COURT: All right. Thank you, counsel. All right. Mr. Uelmen, I will hear your response at 1:30.

MR. UELMEN: Thank you, your Honor. If I could have just a moment.

(Discussion held off the record between Defense counsel.)

THE COURT: No. I said I will hear your response at 1:30.

MR. UELMEN: Thank you.

THE COURT: What part about 1:30 don't you understand?

MR. COCHRAN: We now understand.

MR. HADDEN: Excuse me, your Honor. Before we adjourn for the morning session, I would ask that in the event that a pitchess motion is filed for my client's personnel file, that I be served as well. I don't think the statute requires that, but in light of the court's seeming predisposition to entertain an order shortening time, I would like as much opportunity to be able to respond to it immediately, so would I ask that.

THE COURT: I'm certain counsel will do that as a matter of professional courtesy and I will direct them to do so.

MR. HADDEN: One other thing. I would like to ask if my client is excused for today?

MR. COCHRAN: Yes, for today.

THE COURT: Yes. Thank you.

MR. HADDEN: All right.

THE COURT: All right. We will be in recess.

(At 12:00 P.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; THURSDAY, SEPTEMBER 7, 1995 1:30 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present. All parties are again present. The jury is not present. Mr. Uelmen.

MR. UELMEN: Thank you, your Honor. In listening to Miss Clark's argument, I had to wonder whether we were talking about the same 5th amendment. The 5th amendment that I understand offers a witness a privilege against self-incrimination of a crime. The suggestion that the 5th amendment could have been invoked by Detective Fuhrman for fear of being reprimanded for using naughty words is preposterous.

That's not what the 5th amendment protects against. Moreover, he's not even a detective anymore. What we're talking about is incrimination of a crime, and the crime that entitles this witness to invoke the privilege at this point in the proceedings is the crime of perjury. And Detective Fuhrman's fear of a perjury Prosecution is a very realistic one, especially in view of the veiled threats that have been emanating from the Prosecution. We heard reference to the potential case of People versus Fuhrman and how we would settle a number of issues when that comes about. There is a realistic concern by this witness of a Prosecution for perjury based on the testimony he presented earlier in these proceedings, and that, make no mistake about it, is the only legitimate ground he has to invoke a 5th amendment privilege at this point in the proceedings. And I believe that is a highly relevant fact in terms of how your Honor assesses the impact of the invocation of the 5th amendment at this point in the proceedings. The reference to sauce for the goose being sauce for the gander also represents a misunderstanding--

THE COURT: Don't even bother to address that.

MR. UELMEN: All right. Well, we'll submit an appropriate instruction, but I think there is an important distinction to bear in mind here; and that is the risk to a witness of whatever inferences might be drawn from the invocation of the privilege versus the risk to a Defendant because the risk to a Defendant is the risk that a jury will use this as evidence of guilt. But the risk to a witness is minimal and your Honor need not really be concerned in terms of the witness himself, what impact an adverse inference might have. We only want to look at that inference in the context of its relevance to these proceedings, and we believe that the fact that the invocation of the privilege makes this witness unavailable to us for further cross-examination is highly relevant to these proceedings and highly relevant to the jury's assessment of his credibility. Now, the case law--there's been reference to the California case law being of one mind on this issue. But what's ignored in the Prosecution's argument is that all of the cases they cite deal with the same situation of a witness who has not testified, a witness whom the jury has not seen, whom the jury has not heard and the impact of having that witness invoke the 5th amendment in the presence of the jury. The case that we are primarily relying on, the Hecker case, addresses this concern directly in the context of balancing the Defendant's right to present a Defense versus the witness' right to invoke a privilege, and they indicate that because, for example, striking the testimony would deprive the Defendant of the fundamental right to present a Defense, it should only be utilized after less severe means are considered.

THE COURT: And I haven't heard either side request that I strike his testimony.

MR. UELMEN: Well, what we're talking about here are the less severe means, but the less severe means of balancing that right to a Defense versus the right of the witness to the privilege. And Hecker suggests that the appropriate balance in that particular case would have been to let the jury hear the invocation of the privilege and factor that in to their consideration of the credibility of the remaining testimony. And Hecker is a 1990 case cognizant of all of the supreme court case law, cognizant of the privilege contained in our evidence code. But they're saying under these circumstances, we've got to balance the Defendant's right to present a Defense.

The case of People versus Hill did not hold, as Miss Clark suggested, that it was harmless error to give an instruction to a jury that a witness had invoked the 5th amendment. What the Hill case held was that it was not error to deny the Defense request in that case to have the invocation take place in the presence of the jury; and the court noted in coming to that conclusion that the jury had been informed by means of an instruction identical to the instruction that we are requesting here. And it's important to remember that Hill too did not deal with the context of a witness that the jury has already heard from. And that's really the problem we've got to deal with here, that the jury has heard from Detective Fuhrman, they've seen direct examination, cross-examination, they've seen him on the witness stand for six days. They've heard him talked about. They've heard a drove of witnesses come in to impeach him and they know that when he stepped off of that witness stand, it was subject to recall, and they're bound to wonder what became of Detective Fuhrman, why didn't the Defense call Detective Fuhrman back. And what we're seeking to avoid is an inference unfavorable to the Defense because of the unavailability of this witness for further cross-examination. So we want the jury to know he's not available to be cross-examined, and the reason he's not available is because he invoked the 5th amendment privilege and you can consider his unavailability in assessing his credibility. Now, with respect to the alternative remedy that we have sought, the Prosecution has suggested that the five excerpts that we have offered may not be true, they may be exaggerations by Detective Fuhrman. But the prerequisite for admission under section 1230 under the exception to the hearsay rule is that the circumstances suggest reliability, that ordinarily a person would not make statements that would subject him to criticism in the community or potential criminal liability unless they were true. And we have singled out specific instances from the McKinny tapes in which it's very clear that Detective Fuhrman is talking about things that he did. We're talking about, "Did you tear up driver's licenses," and he nods that he did. We're talking about a response to a question, "Under what did you arrest him," speaking about an arrest that took place the night before, a statement about others driving--tearing up driver's license. "You do that, he probably got that from you," a statement where he says, "I've been on several calls in West L.A. where I'm the third or fourth car, and then I go in and provide the testimony that's necessary to get a conviction." In terms of his concerns when he made these statements, bear in mind, this is the Detective Fuhrman who says to Miss McKinny when she asks, "Well, can we use this in the screenplay?" "No. Hasn't been seven years yet, statute of limitations." If that doesn't show a consciousness by the speaker of potential criminal liability, I don't know what does. But alternatively, regardless of whether there's a potential fear of criminal Prosecution or simply a fear of social ostracism, the result is the same under section 1230. These are declarations against interests. They are highly probative declarations against interest, and we believe the unavailability of Detective Fuhrman should render those statements admissible.

THE COURT: Thank you, counsel. All right. The record in this case indicates in our hearing yesterday outside the presence of the jury--and that was an appropriate procedure to proceed outside the presence of the jury because the counsel for Mr. Fuhrman, Darryl Mounger, did advise the court that it was a--and counsel that it was a possibility, in fact, a likelihood that Mr. Fuhrman would in fact seek to exercise his right not to testify under the 5th amendment to the United States constitution. After we held our hearing yesterday afternoon, the record is also clear that Mr. Fuhrman will refuse to answer any further questions as a witness in this case and he is, therefore, unavailable within the definition of evidence code section 240. The record is equally clear that when we adjourned, that the cross-examination as to Detective Fuhrman was adjourned subject to recall for further cross-examination. The subject matter that Mr. Fuhrman is likely and reasonably and appropriately subject to further cross-examination, we have heard over the last day and a half four witnesses who have come in to testify for the specific reason to impeach the testimony of Detective Fuhrman. Kathleen Bell was called--and this is not a particularly compelling reason for further cross-examination since Detective Fuhrman was in fact asked questions about Miss Bell on direct examination and cross-examination and there was sufficient opportunity since counsel on both sides were aware of the facts and circumstances that led to Miss Bell coming to the attention of counsel on both sides. However, as to Miss Singer, as to Mr. Hodge and as to Miss McKinny, Detective Fuhrman was not direct or cross-examined as to any of the statements made by those three witnesses who were called for the specific purpose of impeaching Detective Fuhrman. The prejudice to the Defendant based upon this unique set of circumstances is the inability to further cross-examine as to these three witnesses and the impeachment evidence that they have offered through their testimony; that is Singer, Hodge and McKinny. However, the case law is equally clear to the court that it is not appropriate to call a witness before a jury that counsel know will invoke the privilege, and that is clearly the fact and circumstance here. And the court will, therefore, deny the request to recall Detective Fuhrman at this time in front of the jury. The instruction offered as an alternative by the Defense, which has been already read into the record and which is page 3 of the Defendant's points and authorities, does have the disability of mentioning the invocation of the right against self-incrimination. Evidence code section 913 clearly states that it is not appropriate to comment upon or bring to the finder of fact's attention the invocation of a privilege. California jury instruction 2.25, Caljic 2.25 deals with the situation where a witness in the course of testifying before the jury invokes the privilege and then the jury is then instructed not to infer or imply anything from that invocation. Therefore, the court will instruct the jury as possible--excuse me--as follows: Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony both on cross-examination--excuse me--on cross-examination is a factor which you may consider in evaluating his credibility as a witness. Now, having found that Detective Fuhrman is unavailable as a witness under evidence code section 240, the court then has reexamined its ruling with regards to the five excerpts which are now offered as statements against penal interest, and the court having evaluated those, finds that the court's previous ruling was appropriate and the objections will be sustained. All right. Are you ready to proceed?

MR. COCHRAN: May we have a moment, your Honor, so we can discuss--

MS. CLARK: Your Honor, I would like to address the court. We feel that the proposed instruction that the court is going to give this jury will cause the jury to speculate on the reason for the witness' unavailability.

THE COURT: Counsel, I've ruled. That's a final ruling. Thank you. Scheduling.

MR. COCHRAN: May we have just a couple minutes, your Honor, to talk about--I think the court knows where we are at this point. Just take a few minutes.

THE COURT: All right. I'm also--and I'm likely to instruct the Prosecution to be ready to start with their rebuttal witnesses tomorrow morning, and we'll take up the issue of admissibility of the exhibits probably later today.

MS. CLARK: We will be moving for reconsideration tomorrow morning.

THE COURT: Well, I'm going to instruct them this afternoon.

MR. COCHRAN: We will be ready--let Mrs. Robertson know?

THE COURT: 10 minutes.

MR. COCHRAN: 2 o'clock, we'll be ready.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are present. Miss Clark.

MS. CLARK: Yes. We are preparing a writ and request from the court a written ruling indicating the basis for its ruling concerning the jury instruction proposed--

THE COURT: That request is denied.

MS. CLARK: --case authority that supports the giving of the instruction that the court has proposed.

THE COURT: All right. I'll prepare a--have the clerk and the court reporter prepare a transcript of the proceedings today. That will be your record.

MS. CLARK: Okay. And the case authority that the court has relied upon for the instruction?

THE COURT: That request is denied.

MS. CLARK: We would request an emergency stay at this time. We would request until tomorrow morning before the court considers instructing the jury on this matter. We do need the time to prepare the papers in order to submit it to the court of appeals. If I may remind the court, the court had previously given the Defense time to submit appeals.

THE COURT: I don't know that I've given them time, but I've encouraged them to do so.

MS. CLARK: In any event, the court has previously given the Defense time to prepare their appellate papers in order to file them, and I'm asking leave of the court to give the People the same opportunity.

THE COURT: Till 9 o'clock tomorrow morning?

MS. CLARK: I will consult with appellate. I think that at least that long would be required. I would also urge the court to consider the fact that immediate instruction to the jury is not necessary. The jury will be given a number of instructions at the end of this case, and that will be ample time to give that one if it is deemed appropriate by the court at that time. So it's not like this is something that needs to be done at this very moment.

THE COURT: All right. Mr. Cochran.

MR. COCHRAN: Your Honor, we'd like--the court has already ruled. You've indicated you ruled. The jury is here. They've been sitting on their hands since 10 o'clock this morning. We want to proceed on. We want to get to a point where we can effectively rest. Miss Clark misstates--what the court said to me last Thursday was, "Mr. Cochran, you know where the court of appeals is, right down the street, if you want to do that," and--

THE COURT: Right down the street a block and a half.

MR. COCHRAN: A block and a half. Well, you have total recall. You invited me that and you didn't give us any time to do anything. You just told me where the court of appeals was.

THE COURT: You didn't ask for any.

MR. COCHRAN: I didn't. No, I didn't ask. But she said you gave us time. You didn't give us any time. We didn't ask for that. Your Honor, we have to bring this case to a conclusion. They knew this day was coming. Everybody knew that. It's not going to save them till tomorrow morning. What you are doing is minimally--it's entirely appropriate. We want to move on with this case, Judge. We have a jury that's going to be mutiny very shortly as this court knows, and we need to resolve this matter.

We saw them walk through here. They want--they're distressed. They should be able to hear something, find out, as we talked about this morning, that this case will be over within the next seven or eight days given rebuttal and surrebuttal on both sides, and I think that's at least some good news for these folks. And they have a right to that. And we want to resolve this matter. There's no reason to wait until 9 o'clock tomorrow morning. It's not going to change anything. If they want to bring a writ, they can bring a writ. It's not going to stop anything. You are not abusing your discretion in this regard. We want to proceed. You've ruled. You told them you ruled, and let's go on with it.

THE COURT: All right. Thank you, counsel. Miss Clark, Mr. Cochran, as Dean Uelmen mentioned, this is a unique factual and legal situation, something I've never seen before, never had to contemplate before. Of course, that's nothing unusual in this particular case. I'll give the Prosecution until noon tomorrow--

MS. CLARK: Thank you, your Honor.

THE COURT: --a stay on that. And we will have final instructions my guess is in the next 10 days to two weeks. But I might--that might--giving a stay might cause me to modify the instruction to say that at the close of the presentation of the Defense case, Detective Mark Fuhrman was not available, et cetera, so the point of time is set in the instruction. All right. Mr. Cochran, anything else?

MR. COCHRAN: Well--

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Your Honor, that has put us in a position, we can't rest until--I guess till noon tomorrow. So effectively what they've done is wasted the rest of the day and half day tomorrow. We can't really do anything, can we, based upon this? And nothing's going to come of this, your Honor. It's a matter of your discretion. We argued the law. And I can understand your Honor being patient, but I just think you ought to reconsider this because we do have--the whim of this one Prosecutor here, we have these 14 jurors back there. So what if we lose all of them? This is going to be a wasted action. And tomorrow at noon, you'll do what you're going to do right now. We would have lost all that time. Right before the break, your Honor indicated be prepared for rebuttal tomorrow. That means we cut off one more day or at least half a day. So that's all I'm saying. I'd urge the court to reconsider that or we're going to be in exactly the same position, Judge, it seems to me.

THE COURT: Well, Mr. Cochran, really, at this point, given the unique situation, factual and legal situation presented by the Fuhrman situation, I doubt that a court of appeal frankly is going to intervene on an interim jury instruction. I would be surprised if they did.

MR. COCHRAN: I would too, your Honor.

THE COURT: And especially in light of the nature of the instruction. Given that fact, I think it would help us all if you rested at this point subject to asking to reopen if an issue is presented by the change in--by the court of appeal of the jury instruction. But I don't know what other witnesses you would call even if the instruction changed significantly or was withdrawn.

MR. COCHRAN: Well, if I could have a moment, I might consider that. I might consider doing that, your Honor.

THE COURT: The reason I say that is, we've got the jury. If they knew that you were resting today and that the Prosecution can move forward with their rebuttal case tomorrow morning with the witnesses that they have planned and that we will spend the remainder of today going over the evidence that the Defense is going to offer and resolving those disputes--tomorrow at 2 o'clock, we have motions on calendar for public agency access to the Fuhrman tapes. We can conclude hopefully the evidence issues after we conclude that hearing and we can move along with--unhesitatingly into the conclusion of the rebuttal case next week.

MR. COCHRAN: The only problem with that, your Honor--and certainly we want to cooperate with the court. But we're doing all the giving. We're doing the resting. We're on track to resolve this. They're standing over there being petulant saying, "We want to wait until tomorrow." So I'm saying I want to be reasonable. I'd like a moment to confer with my colleagues, but I mean think that--

THE COURT: Well, I'm just suggesting to you that even if the court of appeal were to intervene, would you call any additional witnesses in light of that given the court's other rulings, et cetera?

MR. COCHRAN: I don't know, your Honor. Perhaps we might--if they insist on this, we might join in the writ and ask the court to allow us to play the rest of those tapes, you know. Be careful what you ask for. You've said that many times, right?

THE COURT: And I'll say it again.

MR. COCHRAN: Be careful what you ask for. May I have just a couple minutes, your Honor?

THE COURT: Certainly.

MS. CLARK: Your Honor, may I ask that--the court has been very clear that it does not appreciate personal attacks. Mr. Cochran stands before this court daily and engages in that very thing at sidebar and before the court calling--saying that the jury is being made to sit at my whim. It's not a whim when the People feel that there's been a violation of law that may seriously impact on the People's right to a fair trial. That's no whim. That's serious. And I am the advocate for the People. It's my duty to make sure that when I think a violation of the law has occurred to the detriment of the People or the Defendant for that matter, it is my duty to do all that I can to make sure that that is remedied. That's no whim, your Honor. And I'm not being petulant in insisting on enforcing those rights nor did I ever accuse the Defense of being petulant when they asked for time to prepare a writ to reinstate a juror which the court generously gave them and to which we did not object.

THE COURT: Thank you.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: I have what I hope is a reasonable proposal, your Honor. We'd like to do everything that you asked with regard to--there's a stipulation on Matheson. There is the argument regarding the evidence and any of those things you want to do. We want to do everything with the exception of resting until such time as this matter is resolved because we think the natural and logical thing is to give that jury instruction at that point. So everything else we can do and we would ask leave of the court to do it that way. Is that coherent?

THE COURT: It's very coherent. It doesn't satisfy my needs today.

MR. COCHRAN: As we do everything you've asked, your Honor, except we would just--we will rest, you know, at that time, if it's noon tomorrow or 11:59 or so and then ask you to read the instruction at that point. I think--we don't lose anything by that, your Honor. And you've already told the jurors we're at that point. But I think just from the standpoint of discussing it with my colleagues and my client, we just don't feel it would be appropriate for us to rest at this point, your Honor. But we'll do everything else and be available as late as you want or as early as you want tomorrow. Your Honor, one reason why we--and I'm sure you can appreciate this. The next logical thing--as you've said so many times, this is a smart jury. The next logical thing based upon the evidence we've presented over the last two days is that they--and they know Mark Fuhrman was never excused because in their presence, you said he was on 72 hours' call. Is it doesn't take a rocket scientist to know that would be the next logical witness. And so we think it inures to Mr. Simpson's detriment to talk about resting at this point and we want to rest at the point when the instruction is read. I think that explains it and makes sense. And that's why we made that decision, your Honor. But other than that, we're ready to proceed with everything you want, as late as you want to stay today and tomorrow and all the other issues. So we don't really lose anything.

THE COURT: The problem is, then we can't start with the--then why don't we reschedule the argument on access to the tapes at 9 o'clock, and we'll start the rebuttal case tomorrow at 2 o'clock.

MR. COCHRAN: That's fine with us. We're fine. We're fine with that.

THE COURT: All right.

MS. CLARK: Your Honor, we're not.

THE COURT: Why?

MS. CLARK: The court represented to us at sidebar this morning that we would not begin rebuttal until Monday. I went up and instructed everyone to have the witnesses stand by for Monday, and I don't know that we can get someone in now on short notice.

THE COURT: Have them here Monday--excuse me. Have them here tomorrow 2 o'clock. 2 o'clock.

MS. CLARK: I cannot represent that we can based on the court's earlier representations to us.

THE COURT: Well, then you'll rest. Have them here 2 o'clock.

MS. CLARK: Is the court now going to penalize the People because the People are exercising their appellate rights as they're entitled to do? It would appear that you are.

THE COURT: I'll see counsel in chambers.

(Recess.)

(The following proceedings were held in camera:)

THE COURT: Miss Clark--on the record--I think you're telling the court that you feel that I'm punishing you for exercising your rights, your appellate rights I don't think is an appropriate comment to make, especially when you know that this court's motivation is to get this jury deliberating. And if we can adjust our schedule to accommodate that, that's what I'm trying to accomplish here. I've given you what you asked, until--in fact, more than you asked for--until noon tomorrow to pursue your appellate remedies, and I don't appreciate the implication of what you're stating. What I would like to do is get this case to the jury at some point in time. Now, as the facts work out, you've lucked out as a matter of practicality because Deputy Jex came in and told me there are two medical and dental appointments tomorrow that can't be canceled tomorrow afternoon. So the jury is not available to us. So that in essence leaves us tomorrow morning and the rest of today. Do you understand my concern?

MS. CLARK: Of course.

THE COURT: All right.

MS. CLARK: I think it's very clear I felt no differently. I have been very interested in getting this case to the jury and finishing.

THE COURT: Then I'm sure I misinterpreted your remarks.

MS. CLARK: I can only say that this morning, the court indicated to us that we would begin on Monday morning with rebuttal, and I arranged everything accordingly.

THE COURT: Okay. Then I must have misinterpreted what you just said to me.

MS. CLARK: I don't really--perhaps I'm not aware of why the court changed its mind without informing anyone of the reasons for that when initially the court had indicated we would begin rebuttal on Monday. I don't know what transpired to make the court decide we should start rebuttal Friday afternoon.

THE COURT: As I just finished explaining to you, Miss Clark, I would like to present some evidence to this jury since we've had so much downtime. They've had all of a day and a half testimony in the last 10 days.

MS. CLARK: I am aware of that, but through no fault of the People.

THE COURT: I understand that.

MS. CLARK: So we're clear, the People have always been ready at every opportunity. We have not asked for additional time for any of the McKinny tapes, any of the McKinny, the Fuhrman witnesses, and that is what has produced a substantial delay. But--

THE COURT: We're not here to argue that. What I'm asking you is, do you think I've misinterpreted what you said?

MS. CLARK: No. No, I do not. That was the impression I was left with because the court did not share with me its thinking as to why the change from the earlier scheduling.

THE COURT: All right. Now that we've discussed this, did we misunderstand each other's intentions at this point?

MS. CLARK: Perhaps.

THE COURT: All right. I'll take it at that. Now having said that, who do you have working on your appeal? Are they working on it now?

MS. CLARK: Yes.

THE COURT: Okay. Have you called division 5?

MS. CLARK: Well, I had to leave. I asked appellate to make the contact. They said they were as I left the office. Miss Moxham, who took the hearing this morning?

THE COURT REPORTER: Chris took the majority this morning and I took the afternoon argument and the ruling.

THE COURT: Michelle, would you ask ms. Olson to step in, please?

(Brief pause.)

(Court reporter Olson is now present in chambers.)

THE COURT: Miss Olson, would you put together a transcript of this morning's session with regard to the 5th amendment issue right now.

COURT REPORTER OLSON: Yes, sir. Is that it?

THE COURT: That's it.

COURT REPORTER OLSON: You need it?

THE COURT: Need it by the end of business.

COURT REPORTER OLSON: Okay.

THE COURT: Then I need you to change places with Miss Moxham so that she can do likewise. Apparently you split that. All right. Off the record.

(A conference was held, not reported.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are present. The jury is not present. Deputy Magnera, let's have the jurors, please.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: Well, at least two of you are smiling. Three. All right. Ladies and gentlemen, good news, bad news. The good news is that the Defense has told me that they do not anticipate presenting any further witnesses. And if you recollect, when we concluded the Prosecution's case, I had to take about a day to go through the evidence, all of the exhibits that have been presented to me. And as you know, there have been several hundred exhibits that have been offered by the Defense so far, and I have to go over each one of those pieces of evidence to determine whether or not they should be submitted to you for your deliberations when the time is appropriate. So the good news is that we will be concluding I anticipate the Defense case by tomorrow, is that correct, with no further witnesses, Mr. Cochran?

MR. COCHRAN: Well, I would anticipate that's perhaps correct, your Honor.

THE COURT: All right. I've also instructed the Prosecution to be prepared to present their first rebuttal witness Monday morning. And, Miss Clark, you anticipate being able to present your rebuttal starting on Monday morning, correct?

MS. CLARK: Yes, I do, your Honor.

THE COURT: All right. My understanding is that the rebuttal case is presently estimated to be five days by the Prosecution and then perhaps two days of surrebuttal by the Defense. Is that an accurate assessment, Mr. Cochran?

MR. COCHRAN: I believe so depending on surrebuttal, your Honor.

THE COURT: All right. Miss Cochran--excuse me. Miss Clark.

MS. CLARK: We're not related yet. I think that's correct.

THE COURT: All right. So the good news is that the end is in sight. The bad news is that I've got a lot of work I have to do out of your presence. And I apologize for keeping you on hold today. Some significant--and I have to tell you, issues came up that I had never had to deal with before. I had to do a lot of research on the issue, and one of the issues is not yet resolved. So I still have to work on it. I want you to know that we will be in session for the remainder of today going over the items of evidence with the lawyers. Tomorrow morning, I anticipate we'll have to spend concluding that, and tomorrow afternoon I have another hearing set at 2 o'clock as to a completely different issue that involves this case. So we're working hard. But I want you to know that the bailiffs do tell me that you're not happy campers again, and I appreciate that. And my biggest concerns, when I discuss these matters with the lawyers, are your feelings and the inconvenience to you. But that's the bad news, is that I don't have anything further to present to you today or tomorrow morning in all likelihood. We have activities planned for you tomorrow afternoon. There are also some doctors and dentist appointments that we need to take care with you all. So we're not available to do anything tomorrow afternoon. So at this point, unless I hear from you further, I'm going to wish you a good weekend. But you should know we will be here working a full day tomorrow, Friday. Please remember all my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case, allow anybody to communicate with you with regard to the case and have a nice weekend. All right. Thanks for the couple of smiles there. All right. As far as the jury is concerned, we'll stand in recess until--I'll put them on call for tomorrow morning, but we'll stand in recess in all likelihood until Monday morning, 9 o'clock. All right. We'll take a recess to clear the jury, and then I'll see counsel with regards to the evidence. Both sides have their lists?

MS. CLARK: We will.

THE COURT: All right. Let's take 10.

(At 3:10 P.M., an adjournment was taken until, Friday, September 8, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Thursday, September 7, 1995 volume 218

Pages 44439 through 44557, inclusive

(Pages 44409 through 44438, inclusive, sealed)

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: William J. Hadden, Esquire

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I N D E X

Index for volume 218 pages 44439 - 44557

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Day date session page vol.

Thursday September 7, 1995 A.M. 44439 218 P.M. 44526 218

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PROCEEDINGS

Motion re disclosure of exculpatory 44439 218 information relating to Mark Fuhrman

Motion re production of Detective Purdy's 218 personnel file

Motion re Defense request for Prosecution 218 sanctions

Motion re Defense request for invocation 218 of privilege against self-incrimination by Mark Fuhrman

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

Defense witnesses direct cross redirect recross vol.

(None this volume)

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ALPHABETICAL INDEX OF WITNESSES

Witnesses direct cross redirect recross vol.

(None this volume)

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

(None this volume)